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Weakley v. Shartle

United States District Court, D. Arizona

May 4, 2015

Paul Raymond Weakley, Petitioner,
v.
J. T. Shartle, Warden, Respondent.

REPORT AND RECOMMENDATION

BRUCE G. MacDONALD, Magistrate Judge.

Currently pending before the Court is Petitioner Paul Raymond Weakley's pro se Petition Under 28 U.S.C. § 2241 For a Writ of Habeas Corpus by a Person in Federal Custody ("Petition") (Doc. 1). Respondent Shartle has filed his Return and Answer to Order to Show Cause Why Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 Should Not Be Granted ("Response") (Doc. 14). Petitioner filed a Response to Return an [sic] Answer Filed by Respondent on 6-27-13 ("Reply") (Doc. 19). Respondent then filed a Reply in Support of Return and Answer to Order to show Cause Why Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 Should Not be Granted ("Sur-reply") (Doc. 20). Petitioner then filed his Final Response (Doc. 22). Petitioner has also filed a Motion for Judgment in a Civil Case (Doc. 27). Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1). The Magistrate Judge further recommends that the District Court grant the Petitioner's Motion for Judgment in a Civil Case (Doc. 27) to the extent it seeks a ruling in this case.

I. PROCEDURAL BACKGROUND

Petitioner is currently incarcerated at the United States Penitentiary ("USP-Tucson") in Tucson, Arizona. See Response (Doc. 14), Decl. of Theresa T. Talplacido (Exh. "1") at ¶ 2, Inmate History (Attach. "1"). From August 11, 2011 through February 17, 2012, he was out of USP-Tucson on a Federal Writ. Id. at ¶ 2, Attach. 1; see also Petition (Doc. 1) at 32. Petitioner is serving a life sentence from the Middle District of Pennsylvania for being a Felon in Possession of Firearms in violation of 18 U.S.C. § 922(g)(1) and Conspiracy Relation to Racketter Influenced and Corrupt Organizations in violation of 18 U.S.C. § 1962(d). Id. at ¶ 3, Sentence Monitoring Computation Data as of 6/19/2013 (Attach. "3"). In light of Petitioner's life sentence, he has no projected release date. Id. Petitioner filed a Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody on August 30, 2012. See Petition (Doc. 1) at 1.

Petitioner challenges a disciplinary conviction that resulted in his loss of good time credits. Petitioner alleges seven (7) grounds by which his Due Process rights were violated, including that (1) the incident report did not accuse Petitioner of placing the bag of liquid in the secured hallway; (2) the photographic evidence did not support a finding of guilt; (3) the liquid was not tested with the Alco-Sensor; (4) Disciplinary Hearing Officer ("DHO") Petricka found him guilty and sanctioned behavior (lying) for which he had not been charged; (5) DHO Petricka's alleged refusal to show and provide copies of the evidence used against him; (6) he was denied a proper hearing and investigation because his "Unit Team and SIA Mendez lied[;]" and (7) the Bureau of Prisons' ("BOP") alleged refusal to answer his appeals. Id. at 4-7. Petitioner requests that the Court issue its Order directing BOP to dismiss Inmate Misconduct #2176729. Id. at 9.

II. FACTUAL BACKGROUND

On June 21, 2011, Senior Officer S. Obrochta "was conducting searches in the pipe chases in D-1[, ] [and] found two large khaki bags of homemade intoxicants attached to the back of the toilet button inside of the chase." Response (Doc. 14), Exh. 1, Incident Rpt. (Attach. "5"); Decl. of Vickie Petricka (Exh. "2") ¶ 3, Incident Rpt. (Attach. "2"). "The intoxicants were attached to the button servicing cell 212[, ]" and Inmate Weakley was listed as the occupant of cell 212U, and an Inmate Rawlins was listed as the occupant of 212L. Id. "The intoxicants were tested with the Alco-sensor and received a reading of 0.400." Id. Officer Obrochta wrote an incident report detailing the discovery of the intoxicants and charging Petitioner with a violation of Code 222, Making, Possessing, or Using Intoxicants. Id. Later the same day, Acting Activities Lieutenant J. Olivas delivered a copy of the incident report to Petitioner and advised him of his rights. Response (Doc. 14), Exh. 1, Incident Rpt. (Attach. "5"); Decl. of Vickie Petricka (Exh. "2") ¶ 3, Incident Rpt. (Attach. "2"). That day, Petitioner stated he understood his rights, chose not to make any statement, and did not request any witnesses. Id. On June 22, 2011, Petitioner refused to attend the Unit Disciplinary Committee ("UDC") hearing held by Case Manager Mark County and Unit Manager John Pendleton. Id. The UDC referred the matter to the Disciplinary Hearing Officer ("DHO") due to the severity of the incident, and recommended disciplinary segregation and loss of Good Conduct Time ("GCT") as appropriate sanctions. Id. On the same date, Petitioner signed an unwitnessed Waiver of Appearance for the UDC hearing. See Response (Doc. 14), Exh. 1, Attach. "5"; Exh. "2", Attach. "2". Case Manager County noted that Petitioner did not wish to have a staff representative or witnesses present at the UDC. Id.

On June 24, 2011, Petitioner had a DHO hearing before DHO Vickie Petricka. Petition (Doc. 1) at 5; Response (Doc. 14), Exh. "1, " Attach. "5" at 118. During the hearing, DHO Petricka asked Petitioner if his rights had been explained to him, and he "told her that a few days prior I had seen Unit Manager Pendleton who had me sign a piece of paper that he explained would allow me to see the DHO, and with no further understanding, I signed it." Petition (Doc. 1) at 5; see also Response (Doc. 14), Exh. "1, " Attach. "5" at 118. DHO Petricka stopped the hearing for further investigation. Petition (Doc. 1) at 5; Response (Doc. 14), Exh. "1, " Attach. "5" at 118.

On July 11, 2011 at approximately 8:45 a.m., DHO Petricka was advised by Special Investigative Agent ("SIA") Mendez that "he had concluded his investigation into UDC procedures not being followed." Response (Doc. 14), Exh. "1, " Attach. "5" at 118. SIA Mendez told DHO Petricka that he had spoken to Petitioner, and was told that Petitioner was trying to delay the process. Id. At approximately 10:15 a.m. the same day, DHO Petricka reconvened Petitioner's disciplinary hearing. Petition (Doc. 1) at 5; see also Response (Doc. 14), Exh. "2" ¶ 3, Attach. "3."

At the hearing before DHO Petricka, Petitioner acknowledged that he had chosen not to appear before the UDC. Response (Doc. 14), Exh. "2" ¶ 3, Attach. "3." Petitioner claimed that the bag of liquid "was in a secured closet that was not in my cell or any other area described as [his] area of control[.]'" Petition (Doc. 1) at 6; see also Response (Doc. 14), Exh. "2" ¶ 3, Attach. "3." Petitioner further asserted that "the contents of the bag were tested with a blood/alcohol meter - a breathalyzer type device that is used to determine the blood-alcohol content of an intoxicated person, and not to determine the alcohol content of a liquid making this test invalid." Id. After the hearing, DHO Petricka "reconfirmed with [SIA] Mendez that he did in fact speak with inmate Weakley over the UDC matter." Response (Doc. 14), Exh. "1, " Attach. "5" at 117. SIA Mendez "then stated that he did and felt the group of inmates (which includes Weakley) are again trying to raise more issues in an attempt to either delay their discipline process or get the incident report expunged." Id. DHO Petricka examined the evidence, weighed credibility, and found Petitioner guilty and imposed sanctions of 30 days of Disciplinary Segregation, one (1) year loss of Telephone, one (1) year loss of Commissary, and recommendations for alcohol class and a disciplinary transfer. Response (Doc. 14), Exh. "2" ¶ 3, Attach. "3." On August 24, 2011, DHO Petricka signed the DHO report and a copy of the report was provided to Petitioner on April 4, 2012. Id.

On July 22, 2011, Petitioner filed an Informal Resolution Form (BP-8) seeking "[a] dismissal of DHO Petricka's findings and a hearing before the alternate DHO, also an investigation into Petricka's competency as a DHO, and the lying reports dismissed pending a proper investigation." Final Response (Doc. 22), Exh. "2." Petitioner signed the BP-8 on July 16, 2011. Id. Correctional Counselor L. Johannes e-mailed a copy of Petitioner's July 22, 2011 BP-8 to DHO Petricka, who responded on July 25, 2011. Final Response (Doc. 22), Exh. "2;" Response (Doc. 14), Exh. "1, " Attach. "5" at 85. Accordingly, on July 27, 2011, Petitioner was given a BP-9.

Also on July 22, 2011, Petitioner filed an Informal Resolution Form (BP-8) accusing SIA Mendez of lying regarding his contact with Petitioner when DHO Petricka was investigating the propriety of the UDC proceedings. Final Response (Doc. 22), Exh. "4." This BP-8 was also signed by Petitioner on July 16, 2011. Id. Correctional Counselor L. Johannes noted that the BP-8 was e-mailed to Mr. Mendez on July 22, 2011, and Petitioner would be given a BP-10. Id.

On July 29, 2011, Petitioner filed an Informal Resolution Form (BP-8) seeking "copies of an investigation about myself that was furnished to the DHO and used at a DHO hearing... in early July." Final Response (Doc. 22), Exh. "5." This BP-8 was signed by Petitioner on July 23, 2011. Id. Correctional Counsel L. Johannes noted that the BP-8 was e-mailed to Ms. Beauchamp, and Petitioner was to receive a BP-10. Id.

On July 29, 2011, Petitioner also filed an Informal Resolution Form (BP-8) seeking a copy of the July 11, 2011 DHO Report.[1] See Final Response (Doc. 22), Exh. "1." The "Correctional Counselor's Comments" indicate that the BP-8 was e-mailed to Ms. Beauchamp on July 29, 2011, and a BP-10 was to be given to Petitioner. Id. On July 24, 2011, Petitioner filed a Request for Administrative Remedy (BP-9) regarding the DHO report. Final Response (Doc. 22), Exh. "3." On August 11, 2011 through February 17, 2012, Petitioner was on a Federal Writ, and therefore unavailable to pursue his administrative remedies. See Final Response (Doc. 22), Memo. from Case Manager M. County 3/9/2012 (Exh. "12A").

After returning to USP-Tucson after being out on a writ, Petitioner filed a Request for Administrative Remedy (BP-9) on March 1, 2012. Final Response (Doc. 22), Exh. "6." This BP-9 related to his request for copies regarding the "investigation... that was furnished to DHO Petricka[.]" Id. It is also related to the BP-8 submitted on July 29, 2011 and signed on July 23, 2011. See id., Exh. "5." On March 13, 2012, Petitioner filed a second Request for Administrative Remedy (BP-9) regarding this issue. Id., Exh. "8."

Also on March 1, 2012, Petitioner filed a Request for Administrative Remedy (BP-9) seeking a copy of the DHO Report from the July 11, 2011 hearing. Id., Exh. "7." This BP-9 was a follow up to Petitioner's July 29, 2011 BP-8 requesting the same, as well as his July 24, 2011 BP-9. Id., Exhs. "1" & "3." A note apparently in response to Petitioner's March 1, 2012 BP-9 regarding the DHO report states that "Any DHO issues are an automatic BP-10. However, Ms. Kiol has a copy if you want to informally resolve." Id., Exh. "7." On March 28, 2012, Petitioner filed his Regional Administrative Remedy Appeal (BP-10) broadly labeled "DHO Appeal, " seeking a copy of the July 11, 2011 DHO Report, copies of the SIS and UDC reports, and photographic evidence, as well as appealing the DHO's decision.[2] Id., Exhs. "9, " "9A, " "9B, " "9C;" see also Response (Doc. 14), Exh. "1" ¶ 6, Attach. 5 at 53, 58. Petitioner also notes that he did finally receive the DHO report later that same day. Id., Exh. "9." On April 3, 2012, the Administrative Remedy Coordinator sent a letter to Petitioner, informing him that his appeal was rejected as untimely. Response (Doc. 14), Exh. "1, " Attach. "5" at 70. The letter also provided that Petitioner could cure this deficiency if he could provide staff verification that he was not responsible for the untimely filing of the appeal. Id. On April 28, 2012, Petitioner resubmitted his BP-10 with staff verification. Final Response (Doc. 22), Exh. "12, " "12A, " "12B."

On April 10, 2012, Petitioner filed another Regional Administrative Remedy Appeal (BP-10) appealing seeking "copies of all evidence used in [his] hearing and the DHO's decisions."[3] Final Response (Doc. 22), Exh. "10;" see also Response (Doc. 14), Exh. "1" ¶ 7, Attach. "5" at 53, 58. On May 9, 2012, Petitioner filed a Central Office Administrative Remedy Appeal (BP-11).[4] Final Response (Doc. 22), Exh. "11;" see also Response (Doc. 14), Exh. "1" ¶ 9, Attach. "5." The BP-11 appears to be an appeal of Petitioner's March 20, 2012 BP-10 seeking review also labeled "DHO Appeal." Id., Exh. "11" & "11A." On April 24, 2012, the Regional Director responded to Petitioner. Response (Doc. 14), Exh. "1" ¶ 7; Attach. 5 at 82. The Regional Director provided instructions for obtaining documents, as well as addressed the merits of the discipline action itself. Id. Upon review, the Regional Director found that Petitioner had received the requisite due process per BOP policy and the DHO report indicated the basis for the findings therein. Id. The record does not contain a response to Petitioner's May 9, 2012 BP-11. On June 9, 2012, Petitioner filed another Central Administrative Remedy Appeal (BP-11) that sought consolidation of all of his pending appeals regarding the July 11, 2011 DHO hearing. Id., Exh. "13" & "13A." The BP-11 is not stamped with a date reflecting its receipt. Id. The record also does not contain a response to this second BP-11.

III. ANALYSIS

A. Jurisdiction

"Federal courts are always under an independent obligation to examine their own jurisdiction, '... and a federal court may not entertain an action over which it has no jurisdiction." Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) ( quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), overruled in part on other grounds by City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004)). "Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court." Id. at 864. Therefore, a proper characterization of the petition is necessary to a determination of jurisdiction. Id.

Additionally, the judicial power of this and all federal courts is limited to actual cases or controversies. U.S. Const. art. III; see also, Flast v. Cohen, 392 U.S. 83, 94-95, 88 S.Ct. 1942, 1949-50, 20 L.Ed.2d 947 (1968); Munoz v. Rowland, 104 F.3d 1096, 1097 (9th Cir. 1997). "A petition for writ of habeas corpus is moot where a petitioner's claim for relief cannot be redressed by a favorable decision of the court issuing a writ of habeas corpus. Salazar-Torres v. Benov, 2014 WL 4960586 (E.D. Cal.) (citing Burnett v. Lampert, 432 F.3d 996, 1000-01 (9th Cir. 2005)); see also Spencer v. Kemna, 523 U.S. 1, 18, 118 S.Ct. 978, 988, 140 L.Ed.2d 43 (1998).

Here, Petitioner does not claim that the sentencing court imposed an illegal sentence, rather he seeks relief with respect to disciplinary proceedings while incarcerated at a federal facility. Petitioner is challenging the manner, location or condition of the execution of his sentence. See e.g., Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003) ("a prisoner may seek a writ of habeas corpus under 28 U.S.C. § 2241 for expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility of parole.'") ( quoting Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1988)); Bostic v. Carlson, 884 F.2d at 1269 ("Habeas corpus jurisdiction is also available for a prisoner's claims that he has been subjected to greater restrictions of his liberty, such as disciplinary segregation, without due process of law."). Such a challenge must be brought pursuant to § 2241 in the custodial court. At the time of filing the Petition, Petitioner was incarcerated at USP-Tucson in Arizona.

Petitioner alleges that he was sanctioned with inter alia the loss of forty-seven (47) good time credits. Petition (Doc. 1) at 6. A review of the July 11, 2011 DHO Report in this matter indicates that no such deprivation was imposed. Id. at 15; see also Response (Doc. 14), Exh. "1, " Chrono. Disciplinary Record (Attach. "4") at 1. Therefore, the only potential liberty interest that Petitioner was deprived of is thirty (30) days of disciplinary segregation, which he served prior to filing this lawsuit. See Bostic, 884 F.2d at 1269. In light of Petitioner's life sentence, the Court is skeptical that there is anything to remedy. Respondent, however, did not raise mootness, and Petitioner has not had the opportunity argue against the same. As ...


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